v. BURA 1878 9th July 1876, they presented a petition of appeal to the High THE QUEEN Court at Calcutta; and a majority of the Judges of that Court (four against three) decided, after argument in Full Bench, that HANGSEH. the case fell within their appellate jurisdiction; and they sent for Judgment. the record of the proceedings, with a view to an adjudication thereon. From that decision the present appeal has, by special SELBORNE. leave, been brought. LORD The ground on which the majority of the High Court assumed jurisdiction was, that the 9th section of the Act of 1869, purporting to authorize the Lieutenant-Governor of Bengal to extend the Act of 1869 to the Khasi and Jaintia Hills, was in excess of the legislative powers of the Governor-General in Council. In the argument before their Lordships, the jurisdiction of the High Court was sought to be supported, not on that ground only, but on two others also, viz. (1), that the Act of 1869 did not, according to its true construction, exclude the jurisdiction of the High Court as to the Garo Hills, and, therefore, could not do so as to the Khasi and Jaintia Hills, assuming them to have been brought within its operation; and (2) that the whole Act of 1869 (at least so far as it might affect the jurisdiction of the High Court), and not section 9 only, was void and ultra vires of the Indian Legislature. The latter of these arguments had been urged unsuccessfully before the High Court at Calcutta ; but the former was not presented to that Court, and was first suggested, at the hearing before their Lordships, by the junior counsel for the respondent. Their Lordships will first deal with that argument. It was founded on the proposition that the 4th section of Act XXII of 1869 purports to remove the Garo Hills, not from the jurisdiction of the High Court, established by Her Majesty' Letters Patent under the authority of Imperial Statutes, but onl from that of the local courts, constituted by the Regulations the Bengal Code, or by Acts of the Indian Legislature; an therefore, that even if the jurisdiction of those local courts w effectually taken away, and others (constituted by the appoin ment of the Lieutenant-Governor of Bengal), substituted f them, the appellate jurisdiction of the High Court remained. 1878 v. BURA HANGSEH. Judgment. LORD Assuming (but not deciding) that "the Courts of Civil and Cri minal Judicature" mentioned in the 4th section of the Act of 1869, THE QUEEN were only the Courts of Original Jurisdiction established under the Indian Regulations and Acts, their Lordships think that the supposed consequence does not follow. It may be possible that under the terms of the 8th and 9th sections of the High Court's Act (24 and 25 Vict., cap. 104), together with the 27th and 28th SELBORNE. sections of the Royal Letters Patent (28th December 1865), under which the Calcutta High Court is constituted, appeals might have gone to that Court from Criminal Tribunals of first instance, established by the Lieutenant-Governor of Bengal in the Garo or the Khasi and Jaintia Hills, if Act XXII of 1869 had made no other provision for such appeals. But the 5th section of that Act distinctly authorises the Lieutenant-Governor to appoint Tribunals, not of first instance only, but also of "Reference and Appeal;" and, by the notification now in question, he has done so, giving the powers of the High Court to the Commissioner of Assam, with an ultimate controlling authority to himself. Unless, therefore, the whole Act of 1869, or the 9th section of that Act, was void, as being in excess of the legislative powers of the Governor-General in Council, the jurisdiction of the High Court has been excluded. The next question is, whether the whole Act of 1869 is void. It is said to be so, because the jurisdiction of the High Court was established by the Act of the Imperial Parliament already referred to (24 and 25 Vict., cap. 104), which passed in the same Session with the Indian Council's Act; and because by section 22 of the Indian Council's Act (24 and 25 Vict., cap. 67), the power of the Governor-General in Council "to make laws and regulations for repealing, amending, or altering any laws or regulations whatever now in force, or hereafter to be in force, in the Indian territories now under the dominion of Her Majesty, and to make laws and regulations for all persons, whether British or native, foreigners or others, and for all Courts of Justice whatever, and for all places or things whatever within the said territories," is qualified by certain conditions; one of which is, "that he Governor-General shall not have the power of making any aws or regulations which shall repeal, or in any way affect any VOL. III. 26 1878 v. BURA of the provisions of any Act passed in this present Session of THE QUEEN Parliament, or hereafter to be passed, in anywise affecting Her Majesty's Indian territories, or the inhabitants thereof." None HANGSEH. of the other conditions, expressed in the Act, apply to this case. Judgment. The question therefore is, whether an exercise of the legislative power of the Governor-General in Council, purporting to SELBORNE. exclude the jurisdiction of the High Court within these particular districts, is inconsistent with any of the provisions of 24 and 25 Vict., cap. 104. LORD Now, it appears to their Lordships from the express terms of the Act 24 and 25 Vict., cap. 104, that (unless there should be anything to the contrary in the Letters Patent under which the High Court is established) the exercise of jurisdiction in any part of Her Majesty's Indian territories, by the High Courts, was meant to be subject to, and not to be exclusive of, the general legislative power of the Governor-General in Council, as to "all Courts of Justice whatever." By the 1st section of that Act, Her Majesty was authorized, by Letters Patent, "to erect and establish a High Court of Judicature for the Bengal division of the Presidency of Fort William, and others at Madras and Bombay. The next six sections relate to the qualifications, tenure of office, and emoluments, &c., of the Judges of such Courts. The 8th section abolishes, from the date of their establishment, the previously existing Supreme and Sudder Courts in the several Presidencies. The material provisions as to jurisdiction are contained in the 9th, 11th, and 12th sections. The 10th and 18th may be laid out of the case, because they were both repealed by a subsequent Act of 1865 (28 and 29 Vict., cap. 15.) But, as some argument was founded on the 18th, it may be fit here to observe, that by that section, Her Majesty was empowered to make orders in Council transferring any territory or place from the jurisdiction of one to the jurisdiction of any other of the High Courts," and generally to alter and determine the territorial limits of the said several Courts:" and that the same power was, in substance, conferred upon the Governor-General of India in Council (not in his legis lative, but in his executive, capacity) by the repealing Act of 1865. 1878 v. BURA HANGSEH Judgment. LORD The 9th section of 24 and 25 Vict., cap. 104, expressly says, that each of the High Courts shall, within its own Presidency, THE QUEEN have such civil, criminal, and other jurisdiction "as Her Majesty may, by her Letters Patent, grant and direct ;" and that, "save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India SELBORNE. in Council," the High Court in each Presidency shall have all the jurisdiction of the former Supreme and Sudder Courts, abolished by section 8. The authority of the Indian Legislature over the jurisdiction of the High Courts (so far, at all events, as the exercise of that authority might be consistent with Her Majesty's Letters Patent) is here distinctly recognized. The 11th section is similar in effect. It enacts that, after the establishment of the High Courts, every provision in any Act of Parliament, Order in Council, Charter or Act of the Legislature of India, which had been applicable to the Supreme Courts of Bengal, Madras, and Bombay, shall be applicable to the High Courts, as far as may be consistent with that Act itself, and the Letters Patent to be issued under it, "and subject to the legislative powers, in relation to the matters aforesaid, of the Governor-General of India in Council." The 12th section contains nothing of importance to the present question. The Act of 1865 (under which the Calcutta Letters Patent of the 28th December 1865, were actually issued), concludes with an express saving of "the power of the Governor-General in Council at meetings for the purpose of making laws and regulations." Lastly, by the Letters Patent of the 28th December 1865, (clause 44), it is "ordained and declared that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council, exercised at meetings for the purpose of making laws and regulations." So far, therefore, from being in contravention of any of the provisions of the Statute 24 and 25 Vict., cap. 104, or of the Letters Patent issued under that Statute (as altered by the Act of 1865), their Lordships find that such an exercise of legislative authority by the Governor-General in Council, as might remove 1878 v. BURA any place or territory from the jurisdiction of the High Court at THE QUEEN Calcutta, is expressly contemplated and authorized both by those Statutes and by the Letters Patent themselves. Their Lordships, HANGSEH. under these circumstances, agree with the High Court, that Act Judgment. No. XXII of 1869 was, in its general scope, within the legisla LORD tive power of the Governor-General in Council: and they are, SELBORNE. therefore, brought to the consideration of the more limited question, whether, consistently with that view, the 9th section of that Act ought nevertheless to be held void and of no effect. The ground of the decision to that effect of the majority of the Judges of the High Court was, that the 9th section was not legislation, but was a delegation of legislative power. In the leading judgment of Mr. Justice MARKBY, the principles of the doctrine of agency are relied on; and the Indian Legislature seems to be regarded as, in effect, an agent or delegate, acting under a mandate from the Imperial Parliament, which must in all cases be executed directly by itself. Their Lordships cannot but observe that, if the principle thus suggested were correct and justified the conclusion drawn from it, they would be unable to follow the distinction made by the majority of the Judges, between the power conferred upon the Lieutenant-Governor of Bengal by the 2nd and that conferred on him by the 9th section. If, by the 9th section, it is left to the Lieutenant-Governor to determine whether the Act or any part of it shall be applied to a certain district, by the 2nd section it is also left to him to determine, at what time that Act shall take effect as law anywhere. Legislation, which does not directly fix the period for its own commencement, but leaves that to be done by an external authority, may, with quite as much reason, be called incomplete as that which does not itself immediately determine the whole area to which it is to be applied, but leaves this to be done by the same external authority. If it is an Act of legislation, on the part of the external authority so trusted, to enlarge the area within which a law actually in operation is to be applied, it would seem à fortiori to be an Act of legislation, to bring the law originally into operation by fixing the time for its commencement. But their Lordships are of opinion that the doctrine of the |